As I have argued before, citing Louis Fisher's "Presidential War Power," the Framers unambiguously denied the president the power to initiate offensive military action. But as Framers James Madison and Elbridge Gerry, authors of the war-powers clause, explained at the Constitutional Convention, they did leave "to the executive the power to repel sudden attacks."
In the Founding era, no one doubted Congress needed to approve any act of war beyond what was necessary for the president "to repel sudden attacks." In the 1801 case Talbot v. Seeman, involving a ship seized as a war prize, Chief Justice Marshall explained: "The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed."
Was Clinton repelling a sudden attack on the United States when he bombed Yugoslavia? Even Gore never claimed that.
In the war against al-Qaida -- including his order for the NSA to intercept al-Qaida-linked communications in and out of the United States -- was President Bush acting either under a congressional war authorization or his own authority to repel sudden attacks?
He was doing both.
After 9-11, Congress authorized the president to make war against "those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks." If this authorized the president to invade Afghanistan, surely it authorized him to intercept communications between the United States and suspected terrorists in Afghanistan.
But even if Congress hadn't authorized a war, it is reasonable to conclude the president could intercept al-Qaida-linked communications in and out of the United States even in circumstances where a court-order could not be secured. Surely, the president's authority to repel sudden attacks includes the authority to listen at our frontier for sounds from the enemy.
But -- at least so long as there is a Republican in the White House -- it seems that Gore's "living and breathing" Constitution would put earplugs in the sentries who guard the border between us and the next 9-11.